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A popular oyster farm in the Point Reyes National Seashore announced today that it is requesting a rehearing in front of a full 11-judge federal appeals court panel on a ruling that could cause the farm to shut down.

Drakes Bay Oyster Company issued a statement today saying it remains open and will file the request within 45 days asking for the full panel of the 9th U.S. Circuit Court of Appeals to hear the case regarding the fate of the business.

U.S. Secretary of the Interior Kenneth Salazar last November announced that he had decided not to renew the permit for the oyster company to operate in the national seashore.

The company filed a lawsuit challenging Salazar’s actions, but a judge in February declined to issue a preliminary injunction that sought to block the farm’s closure until a full trial was held on the lawsuit.

The appeals court later issued a temporary injunction allowing the farm to stay open until the company’s appeal was resolved, but a three-judge panel from the court on Tuesday, in a 2-1 decision, upheld the lower court’s ruling denying the preliminary injunction.

Kevin Lunny, owner of Drakes Bay, said in a statement that the dissenting opinion by the appeals court gives the company hope that it will be allowed to stay open.

Judge Paul Watford wrote in the dissent that by enacting the 1976 Point Reyes Wilderness Act, Congress “viewed the oyster farm as a beneficial, pre-existing use whose continuation was fully compatible with wilderness status” in the national seashore.

Watford wrote that the majority’s decision contained “nothing of substance” and that the company was “likely to prevail on the merits.”

Lunny said, “After reading the Court’s decision—and especially the dissent from Judge Watford—we are more convinced than ever that we will prevail.”

Lunny and his wife Nancy bought the business in 2004 from Johnson Oyster Co., taking over the remaining years of a 40-year permit to operate in the national seashore.

Salazar, who has since stepped down as Secretary of the Interior, wrote in his Nov. 29 decision that allowing the lease to expire “would result in long-term beneficial impacts” to the natural environment of Point Reyes by allowing the 1,000-acre swath of submerged estuary to return to wilderness.

The appeals court in its majority ruling Tuesday wrote that the oyster farm was purchased by the Lunnys “with full disclosure, knowing that the reservation of use and occupancy was set to expire in 2012.”

The Environmental Action Committee of West Marin hailed the court’s ruling Tuesday, but Lunny said that other environmentalists and local leaders support the company.

“With the support of thousands of environmentalists, community members and elected leaders around the nation, we will continue to fight for what’s right and remain committed to succeeding in our fight to remain open and serve our community,” he said.

Dan McMenamin, Bay City News

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